Archive | January 2023

U.S. Supreme Court to decide whether mere mention of someone’s name during predicate offense constitutes aggravated identity theft.

By Megan E. Coleman

On November 10, 2022, the United States Supreme Court granted certiorari in Dubin v. United States, No. 22-10, to decide “whether a person commits aggravated identity theft any time he mentions or otherwise recites someone else’s name while committing a predicate offense.” Oral argument is scheduled for February 27, 2023.

This issue not only divided the Fifth Circuit, but it split the federal circuits as well.

The Fifth Circuit’s per curiam opinion in United States v. Dubin, 27 F.4th 1021 (5th Cir. 2022), essentially stands for the proposition that any time a real person’s identity is used during a health care fraud, even if the identity was lawfully obtained, and the person did in fact receive health care services, that a conviction for aggravated identity theft will be automatic, and so will the two-year mandatory consecutive sentence of imprisonment.

In this case, Dubin was convicted of health care fraud for overbilling Medicaid by $101 for a psychological evaluation his company provided to a patient. For this he was sentenced to one year and a day in prison. However, the Government also charged Dubin with aggravated identify theft in violation of 18 U.S.C. § 1028A and obtained a conviction on that count as well, adding a mandatory two year consecutive sentence of imprisonment to Dubin’s sentence. The Government obtained this conviction, not because Dubin stole or misrepresented anyone’s identity, but because he included his patient’s accurate identifying information on the Medicaid claim that misrepresented how and when the service was performed. The Government argued at trial that Dubin’s commitment of the health care fraud offense “obviously” meant that he was “also guilty of” aggravated identity theft because aggravated identity theft is an “automatic” additional offense whenever someone commits provider-payment healthcare fraud.

The Fifth Circuit affirmed the Section 1028A conviction holding that Dubin’s fraudulent billing scheme constituted illegal “use” of a means of identification of another person.

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Unprovoked Flight, Reasonable Articulable Suspicion, and Article 26

By Isabelle Raquin

On December 19, 2022, the Supreme Court of Maryland filed Washington v. State, No. 15, September Term, 2022, addressing whether unprovoked flight in a high-crime neighborhood adds to the reasonable articulable suspicion necessary to detain a person under the Fourth Amendment and Article 26 of the Maryland Declaration of Rights.

Washington follows in the footsteps of Illinois v. Wardlow, 528 U.S. 119 (2000), where the Supreme Court of the United States considered whether unprovoked “headlong flight” in a drug-trafficking area constitutes reasonable articulable suspicion for law enforcement to detain a person.  Wardlow determined that “headlong flight—wherever it occurs—is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.”  However, a lot has happened in the past 20 years that could explain why a person’s flight from law enforcement is entirely consistent with innocence.

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January 2023 Maryland Certiorari Grants

On Friday afternoon, the Supreme Court of Maryland granted review in one criminal and two civil appeals. The certiorari grants, with links to the Appellate Court of Maryland opinions under review, are below.

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Introduction to Co-Managers of the Maryland Appellate Blog.

As the Maryland appellate courts have made historic changes with their official name changes, the Maryland Appellate Blog is excited to introduce its own updates with three new Co-Managers! Read below to learn more about each co-manager, their introduction to appellate law, and vision for the Blog.

Tia L. Holmes, Esq.

I am a relatively recent graduate of the University of Baltimore School of Law. I graduated in 2020. During law school, I was an editor on the Law Review, a member of the two-person William E. McGee National Civil Rights Moot Court Team, and Legislative Director for the Student Bar Association. I also became a regular volunteer with the Homeless Persons Representation Project, assisting with expungements and Veterans benefits claims.

After graduating, I clerked for the Honorable Justice Jonathan Biran at the then Court of Appeals (now Supreme Court of Maryland). When my clerkship concluded, I began my current position as an Assistant Public Defender in the Appellate Division of the Maryland Office of the Public Defender.

I began my journey in appellate law during law school. I first realized that I had a natural passion for appellate law while completing my Introduction to Advocacy course. I became extremely passionate about the issue that my hypothetical client faced and determined to make that area of law right. As a member of my moot court team, I honed my appellate advocacy skills and confirmed my interest. Thereafter, I completed a summer internship in the Appellate Division. After my internship, I knew that appellate law was where I belonged and that the Office of the Public Defender is where I should begin.

It is an honor to be a co-manager of the Maryland Appellate Blog. As a co-manager, my vision for the future of the Blog is that it continues to serve as an information source for lovers of the appellate practice. My hope is that my input, alongside Alana’s and Meaghan’s, will shed light on the practice from a new attorney’s perspective. I also hope that the Blog will demystify the appellate practice and attract diverse groups of attorneys, who may be questioning their interest in the practice.

Meaghan C. Murphy, Esq.

I graduated from the University of Maryland Francis King Carey School of Law in 2017. During law school, I was a member of the Moot Court Board, Women’s Bar Association, and the Maryland Environmental Law Society, as well as the Executive Symposium and Manuscripts Editor of the Journal of Business and Technology Law. 

As a member of the Moot Court Board, and the Environmental Law Society, I was able to participate in various moot court competitions across the country, including New Orleans and in D.C. After graduation, I clerked for the Honorable Judge Douglas R. M. Nazarian at the Court of Special Appeals (now Appellate Court of Maryland “ACoM”). I had the opportunity to observe first-hand some of the best orators and litigators in Maryland on argument days, draft opinions for binding case law in Maryland, and talk face-to-face with the judges and staff of the appellate courts of Maryland on a daily basis, which gave me a true appreciation for the importance and complexity of appellate practice. Because of this, it was while clerking for Judge Nazarian that my passion for appellate practice truly ignited. After my clerkship, I entered private practice and have received the opportunity to work on several appeals, some of which were reported, which has only affirmed my passion and desire to build a practice in appellate law.

It is an honor to be a co-manager of the Maryland Appellate Blog. As a co-manager, my vision for the future of the Blog is that it continues to serve as the premier source for analysis of Maryland appellate decisions and information about appellate practice for laypeople and attorneys alike.  I share the hope of my fellow co-blog managers, Tia and Alana, that the Blog will demystify and attract diverse groups of attorneys who are new to appellate practice.

Alana R. Glover, Esq.

Although I am a recent 2020 graduate from the University of Baltimore School of Law, I have gained an array of experience in the legal field.  During law school, I served as a Thurgood Marshall Law Clerk for the Maryland Attorney General’s Office and later as a student attorney in the University of Baltimore’s Innocence Project Clinic.  Immediately following law school, I served as a Judicial Law Clerk on the Maryland Court of Special Appeals (now the Appellate Court of Maryland) for The Honorable Andrea M. Leahy.  Following my clerkship, I worked at a full-service law firm practicing general litigation before joining my current firm, Jackson Lewis, P.C. In my current position, I solely practice Labor & Employment law, from litigating state and federal employment claims to negotiating collective bargaining agreements across the country.  Additionally, I serve as the Co-Chair of the Judicial Nominating Committee of the Alliance of Black Women Attorneys and as an associate member of the Cole-Davidson American Inn of Court, “founded in 2022 to promote diversity, civility, ethics, and excellence in appellate advocacy.”

Despite having general knowledge about the judicial system before law school, as a first-generation law student, I lacked exposure to how appellate practice shapes the law.  I directly experienced the significance of appellate practice, specifically in the State of Maryland, through my judicial clerkship.  There I discovered my love for the appellate practice. As a result of my experience, I also gained a passion for increasing diversity in the appellate community.  Consequently, I became involved with The Appellate Project (TAP), a national non-profit whose mission is to “empower law students of color to thrive in the appellate field.” I have served as a mentor in the program since 2021.

As a co-manager for the Maryland Appellate Blog, my vision is to continue to provide critical updates from the Supreme Court of Maryland and the Appellate Court of Maryland.  I also hope to support the Blog’s editors and readers, alongside my colleagues Tia and Meaghan, in successfully navigating the evolving legal determinations and significant decisions rendered by Maryland’s appellate courts.  Lastly, I want to represent and encourage diverse practitioners from various genders, races, socioeconomic backgrounds, and experience levels seeking to become active in Maryland’s appellate practice.